Does Australia need a human rights code?

Australia is the only Western democracy where human rights are not formally protected, either by law or by the Constitution. Minorities, elderly, and disabled want a human rights charter. But a proposal for a charter has unleashed fierce opposition from church groups and opposition politicians.

ByKathy Marks, CorrespondentDecember 22, 2009

Sydney, Australia — A proposal to enshrine human rights in Australian law has unleashed fierce opposition from church groups, who say it would undermine religious freedoms, and opposition politicians, who say it would politicize the judiciary.

Australia is the only Western democracy where human rights are not formally protected, either through legislation or in the Constitution. A government-appointed committee, set up after Prime Minister Kevin Rudd’s Labor Party came to power in 2007, has just completed a national consultation process that found strong community support for a human rights act or charter.

But many religious leaders worry that such legislation would expose organizations to charges of discrimination if they chose to employ people of a particular faith. Other critics, including opposition politicians, claim that it would transfer decisionmaking powers on sensitive issues such as abortion and gay marriage from Parliament to unelected judges.

Under the proposed “dialogue model” of a charter, already in force in Britain and New Zealand, senior judges could declare a law “incompatible” with human rights and refer it back to Parliament – though politicians would not have to amend it.

“The model is ... respectful of the proper sovereign role of Parliament in making laws for the nation,” says Catherine Branson, a former judge and president of the Australian Human Rights Commission.

Government gets 35,000 letters

The government has yet to respond to the report of the committee that conducted the consultation. Chaired by a Jesuit priest and law professor, Frank Brennan, it received more than 35,000 written submissions – the largest number ever for a national consultation. Those who feel their rights are under threat include indigenous Australians, the homeless, people with disabilities, those living in remote areas, and the elderly.

It is these vulnerable citizens who would benefit most from a human rights act, say its supporters. “Every country grapples with such issues, but a human rights framework around which decisions can be made in a principled way is a very valuable tool,” says Ms. Branson. “It [the status quo] is pretty good for most Australians most of the time, but not for all Australians all of the time.”

George Williams, a constitutional law professor at the University of New South Wales, says opposition stems partly from the conviction that human rights are already sufficiently protected. “There’s a view that Australia doesn’t have a strong human rights problem that demands reform, and in many ways I accept that,” he says.

But Mr. Williams and others point to what they see as examples in recent years of rights abuses: the mandatory detention of asylum seekers, including children, for long periods, and the suspension of racial discrimination laws to enable a government crackdown on Aboriginal communities in the Northern Territory.

Some of these issues were challenged in the courts, but dismissed, with one High Court judge saying the courts could not weigh in in the absence of a law. Victoria and the Australian Capital Territory have established their own charters.

Jim Wallace, director of the Australian Christian Lobby, argues that “the whole rights matrix of charters and racial and religious vilification laws place a secularist worldview very much above any other worldview.” He notes a recent ruling by the European Court of Human Rights that crucifixes in Italian classrooms violate religious and educational freedom.

But Williams says a law is needed. “Human rights in Australia are uniquely dependent on the wisdom and good sense of our elected representatives,” he wrote in a recent article. “[We] like to assume that we have our rights, but as a matter of law we do so for only so long as they have not been taken away.”